A Weapon-Salve for the Churchs Wounds, Religious treatise 1 · Part 1 · Chapter 8
CHAP. VIII.
The last thing dictated by the Law of Nature, is, that every Offender against the Laws of the Society, must give an account of his actions to the Governours of it, and submit to the censures inflicted upon him by them. The originall of penalties in Societies. The nature of them, according to the nature and ends of Societies. The penalty of the Church no civil mulct; because its Laws and ends are different from civill Societies. The practice of the Druids in excommunication. Among the Iews, whether a meer civill or sacred penalty. The latter proved by six arguments. Cherem Col Bo objections answered. The originall of the mistake shewed. The first part concluded.
NAture dictates further, that in a well-ordered Society, every § 1.offender against the Rules of that Society, must give an account of his actions to the Governours of that Society, and submit to the censures of it, according to the judgement of the Rulers of it. In all Societies subsisting by Laws, men being more ruled by hopes and fears, then by a sense of duty, or love of goodness, it is necessary for maintaining a Society, that there must be not only a declaration of what men ought to do, but a setting forth the penalties which they must undergo upon violation of the Laws whereon the Society doth subsist: And as there must be penalties annexed, as the sanction of the Law, so it must of necessity be implyed in a well-ordered Society, that every person, as he doth promise obedience to the Law, so by the same obligation he is bound to submit to the penalties upon disobedience: For whatever Laws binds to duty where there is a penalty threatned, doth bind likewise to punishment upon neglect of duty: for no sooner is the Law broken, but the offender lyes under the penall sanction of that Law, and is thereby bound to give an account of himself and actions, to those Governours who are bound to see the Laws obeyed, or offenders punished. Guilt follows immediately upon the breach of the Law, which is nothing else but the offenders obligation to punishment. From this obligation on the offenders part, ariseth a new relation between the Governour of the Society and the offender. On the Governours part a right to punish, vindictive justice supposing offences committed, and on the offender… part, an obligation to undergo what shall be inflicted upon him for his offence: Punishment being nothing else, but malum passionis ob malum actionis. There must be then these things supposed in any well ordered Society; Laws to be governed by, Rulers to see the Laws kept, or offenders punished, penalties made known for offenders, submission of the persons in the Societies to the penalties, if they deserve them. But now of what kind, nature, and degree the penalties must be, must be resolved according to the nature, end, and design of the constitution of the Society If it be a Society for preservation of the rights of Bodies, or Estates, the penalties must be either pecuniary or corporal: And the ground is, because the end of legall punishment is not properly revenge, but the preservation of the Society, which without punishments could not be: A threefold end is therefore assigned to punishments; the reformation of the offending person, the prevention of furtherGellius Noct. Attic. l. 6. c. 16. V. Grotium de jure belli, l. 2. c. 20. s. 6, 7, 8. Matth. 1. 19. offences in the Society of the same kind, and the being a terrour and example to others; the first is called foreign or foreign. The second foreign, being for the preservation of the honour of the Magistrate: the third foreign, when the punishment is inflicted upon one, that others should take notice of it; which must be alwayes done in a publike manner: So foreign ▪ in Matthew, is opposed to foreign.
These things being thus in general considered, come we§ 2. now to apply it to the Church considered as a Society. That it hath peculiar Laws to be governed by, appears by the distinct nature, end, and design of the constitution of it; which is not to preserve any outward Rights, but to maintain and keep up a religious Society for the service of God; and therefore the penall sanctions of these Laws cannot properly be any corporall or pecuniary mulct, but somewhat answerable to the nature of the Society. It must be then somewhat which implyes the deprivation of that which is the chiefest benefit of that Society. The benefits of it are the priviledges and honour which men enjoy by thus associating themselves for so high an employment: That punishment then must be the loss of those priviledges which the Corporation enjoyes, which must be by exclusion of the offending person from communion with the Society. Hence we see it is evident, that which we call Excommunication is the greatest penalty which the Church, as a Society, can inflict upon the members of it, considered as such. And hence it is likewise clear, that as the Society of the Church is distinct from others, the Laws, ends, Governours of a different nature; so the punishment must be a punishment distinct from civill, and ordained wholly in order to the peculiar ends of this Society; which they do not well consider, who deny any such power as that of Excommunication peculiar to the Church, which is as much as to deny that the Laws whereby the Church is ruled, are different from the civil Laws, or the end of this Society from the ends of civil Societies: for the punishment must be proportioned to the Laws, and referred immediately to its proper ends. It were no wayes difficult to answer the pretences brought against this: For although I acknowledge a subordination of this religious Society to the Supream Authority in the Commonwealth, and that the Rules concerning the Government of the Society in common must have their sanction from thence; yet this no wayes implyes but it may have its peculiar penalties and power to inflict them, any more then any Company of Tradesmen have not power to exclude any from their Company for breaking the Rules of the Company, because they are subordinate to the Supream Authority: or any Colledge to expell any from thence, for breaking the locall Statutes of it, which are distinct from the Common-Laws. Nor is it any argument, that because Christians had mutuall confederations in times of persecution for the exercise of censures, therefore these censures were only arbitrary and humane; unless it be proved, that it was not a duty in them so to confederate & joyn together, nor was there any antecedent obligation to inflict those censures upon offenders. Much lesse, thirdly, because their jurisdiction is not civil and coactive, therefore they have none at all; which is as much as to say, the Laws of Scripture are not our common-Laws, therefore they are none at all.
I shall not here insist upon the divine Right of power to§. 3. excommunicate offenders, founded upon the positive Laws of Chist, it being my only businesse now to shew what foundation such a power hath in the Law of Nature, which we have seen doth follow upon the Churches being a distinct Society ruled by other Laws, acting on other ends, subsisting upon different grounds from any other Society. A further evidence we have of this, how consonant it is to the light of Nature, from the practice of all Societies pretending to be for the Worship of God, who have looked upon this as the proper penalty of offenders among them, to be excluded out of those Societies. Thus we find among the Druids, whose great office was to take care of the worship of their gods, and to instructCaesar de bello Gallico. l. 6. V. Nicolaum Damascenum de moribus gentium de cercetis, foreign. the people in Religion, as Caesar relates, Illi rebus divinis intersunt, sacrificia publica ac privata procurant, religiones interpretantur; and accordingly the punishment of disobedience among them was excommunication from their sacrifices, which they looked upon as the greatest punishment could be inflicted upon them, as Caesar at large describes it; Si quis aut privatus aut pubicus eorum decreto non stetit, sacrificiis interdicunt: haec poena apud eos est gravissima: quibus ita est interdictum, ii numero impiorū & sceleratorum habentur; iis omnes decedunt, aditū eorū sermonem que defugiunt, nè quid ex contagione incommodi accipiant, ne que iis petentibus jus redditur, ne que honos ullus communicatur.
The practice of Excommunication among the Jews is not questioned by any, but the right ground and orignall of that practice, with the effect and extent of it. Some conceive it to have been only taken up among the Jews, after the power of capitall punishments was taken from them; and that it was used by them, wholly upon a civill account, not extending to the exclusion of men from their worship in the Temple or Synagogues, but only to be a note of insamy upon offending persons. This opinion though entertained by persons of much skill and learning in the Jewish antiquities, yet carries not that evidence with it to gain my assent to it. For first, the causes of excommunication were not such as were expressed by their Law to deserve such civil punishments as might have been inflicted by them upon offenders, nor were they generally matters of a civill nature, but matters of offence and scandall, as will appear to any that shall peruse the twenty four causes of Excommunication, related out of the Jewish Writers by Selden and Ioh. Coch. Such were the neglecting the Precepts of the Scribes, the vain pronouncing the Name of God, bearing witness against a Iew before Heathen tribunals, doing Selden de jure natur &c. l. 4. cap. 8. Excerpt. Gem. Sanh. pag. 147.any common work in the afternoon of the day before the Passover, with others of a like Nature. If Excommunication had been then taken up among them onelyonly ex confoederatâ disciplinâ, to supply the defect of civil Judicatories, at least all Capitall offenders must have lain under the Sentence of Excommunication. But here we read not of any being Excommunicated for those, but for other lesser matters, which were looked upon as matters of scandal among them: and though some of them were matters of civil injuries, yet it follows not that men were Excommunicated for them as such, but for the scandall which attended them. As, in the Christian Church, men are Excommunicated for matters which are punishable by the civil Magistrate, but not under that notion, but as they are offences to that Christian Society which they live among. Secondly, It appears that Excommunication was not a meer civil Penalty, because the increasing or abatement of that Penalty did depend upon the person's Repentance, and desire of Absolution. Now civil Penalties do not regard the intention and mind of the Person, but the quality and desert of the Action; the Reason is, because Humane Lawes do respect immediately actionem ipsam, and not animum agentis, unless it be onelyonly so far as the mind hath influence upon the Action. But now it is otherwise in such Lawes which take immediate Notice of the intention of the minde, and onelyonly of outward Actions as they are significative and expressive of the inward intention: for in these, though the ground of proceeding to Penalties be from the notice taken of the outward Action, yet that outward Action being subject to Penalty, as expressive of the minds intention; where there may be sufficient evidence given of the Integrity and Uprightness of the Intention afterwards, there may be proportionably a Relaxation of the penalty; because the end of the Penalty inflicted was not to be an Act of Justice excluded from Mercy in the end of Administration as in Civil Judicatories, but an Act of Justice whose end was mercy, that is, the regaining and recovering the offenders soul from sin, by inflicting such a penalty upon him, as might humble him under the sense of it. Hence appears the great reasonablenesse of their proceedings in the managery of Discipline in the primitive times, who did not fix a certain time as a standing Law for all offenders, but did encrease, or lessen both the time and weight of their penance, according to the evidences given of their submission and true repentance for their miscarriages. That it was thus now in reference toEpist. Hebr. I…stitut. p. 55. excommunication among the Jews, appears from what is asserted by the learned Buxtorf concerning the time of the lesser excommunication, called foreign Niddui, which remained thirty dayes usually, but were shortned by confession and desire of absolution; durat 30. dies qui tamen poenitentiâ & deprecatione decurtantur. But if after thirty dayes past, he continue impenitent, the Judge as he sees sit, encreaseth the punishment, so as to double or treble the time, or extend it to his whole life: if he dyed without repentance, a stone is laid upon his Bier, to shew he deserved lapidation; they wept not for him, nor buryed him in the common place of buriall. Further,V. Selden de jure nat. &c. lib. 4. cap. 8. p. 516. Shulchan. A ru…h chosen. hammischpat. s. 100. Excerpt. Gen. Sam. bed. p. 141. n. 11. 12. Buxtorf there alledgeth this constitution of their Law: that if he that was under Niddui, and desired not absolution, was the second time under it, if that did no good on him, then he was excommunicated with the higher sort of excommunication, called foreign which is likewise observed by Ioh. Coch. Mr. Selden, and others. From whence it is evident that this was an Ecclesiasticall censure, and not meerly Civill, because the main end of it was not satisfaction to the Law, but the repentance of the person who lay under the fault; and according to the evidence given of it, the penalty was relaxed or encreased, which argument not yet taken notice of nor improved by Writers on this subject, seems to make the case clear, that excommunication among the Jews was not a meer out-lawry, as some conceive it to have been.
Thirdly, I argue, If it was not the breach of the Law, but the§, 5. publikeness of the offence, or the scandall of it which was the ground of excommunication; then it was not a meer civil penalty, but an Ecclesiasticall censure: for civill penalties do proceed upon the breach of the Law, and alter not as to the publikeness or privateness of the offence; but here it is evident that the same offence deserving excommunication if done in publike, did not if done in private, or was left at the persons liberty to have the offender excommunicated or not. That which is reckoned as the first cause of excommunication, is affront or contempt put upon a wise man, or Rabbi, or one that was foreign a Student in the Law; now it is determined by them in this case, that if it were done in private, the Rabbi might pardon him: but if in publike, he could not. For as Ioh. Coch. gives the reason, publicum p. 146.Doctoris ludibrium in legis contemptum redundas: the contempt of publike Teachers of the Law, redounds to the dishonour of the Law its self. Thus it was the scandall of the fault. and not the bare offence which made excommunication necessary among them; and not as that scandall was a meer defamation of the person, but as it redounded to the contempt of the Law. Fourthly, I argue from the form used in excommunication by them. There are two▪ forms produced of their excommunications, the one by Buxtorf out of an oldLex Rabbinic. p. 828. Hebrew Manuscript, the beginning of which is, Ex sententiâ Domini Dominorum, sit in Anathemate Plo…i filius Ploni, in utraque domo judicii, superiorum, sc. & inferiorum, &c. where two things evidence, it was accounted a sacred and no civill action, doing it immediately in the name and authority of the Lord of lords; and pronouncing him excommunicate both in Heaven and Earth. So R. Elieser, speaking of the ExcommunicationPirk. R. Elieser c. 38. p. 101. of the Cuthites or Samaritans, Atque anathemate devovebant Cuthaos mysterio nominis Amphorasch, & Scriptura exarata in tabulis, & anathemate domus judicii superioris, atque anathemate curia inferioris, as it is translated by Guli. Vorstius, who in his Notes upon that Book produceth a most dreadfull sentence of Excommunication used to this day in many▪ Synagogues, which they call Cherem Col Bo. from the book whence it is taken, which runs most solemnly inp. 226. ad 230. the several names of God, whereby they do Chamatize, curse and devote the persons against whom it is pronounced. Fifthly, It appears not to be a meerly civil thing instead of civill power, because they use it against those over whom they have no civill Jurisdiction, as appears by their Schamatizing the Christians in their Liturgies, as Buxtorf observes. Sixthly, I argue from the Effects of it, because they who lay under it were excluded from publike Worship, which is averred by Buxtorf, Goc…. and others in the places forecited. It is acknowledged that he that was onelyonly under Niddui, might be present at publike Worship; but even there he was under his Separation too, of four Cubits from any other Israelite.
And hence in probability might the mistake arise, because§. 6. those under Niddui might appear at the Temple or Synagogue, therefore Excommunication was no prohibition à Sacris. But he that was under Cherem, Non docet, non docetur, Neither teacheth others, nor is taught himself, saith Ioh. Cocceius; and Buxtorf of one under Cherem, omninò à coetu sacro excluditur: Ep. institut. pag. 56.and in this sense Buxtorf expresly takes the turning out of the Synagogue, Ioh. 9. 22—12. 42. which, saith he, is done by Cherem. But against this it is strongly pleaded by our Learned Mr. Selden, that putting out of the Synagogue isDe Syned…iis lib. 1. cap. 7. nothing else but Excommunicating foreign to separate from the Congregation, taking foreign and so foreign in the civil and not sacred sense, as it denotes an excluding them from common Society; but though it be freely granted that that is sometimes the signification of foreign and foreign as Mat. 10. 17. yet those particulars being considered, which are already laid down, I shall leave it to consideration whether it be more probable to take the word Synagogue here in a Civil or Sacred Sense; when the occasion expressed is meerly a matter of Doctrine and Opinion, and not any thing condemned by their Law. Another thing which hath been, I believe a great ground of mistaking in this matter, is, that excluding from the civill Society among them was alwayes consequent upon Excommunication; the Reason whereof was, because the Church and Common-wealth were not distinct among the Jews; and the same persons who took care of Sacred, did likewise of Civil things (there being no distinct Sanhedrins among them as some imagine:) but from hence it no wayes follows, but their Excommunication might be an exclusion from Sacred Worship as well as Civil Society. However, were it as they pretend, that it was from civill commerce, yet the whole people of the Jews being foreign Gods peculiar people, and his only Church in being before the times of the Gospel, an exclusion in that respect from the common Society of them, might deservedly be looked upon as a sacred action, and not meerly civill, it being a separation from a people whose main ligature was their being a Church of God, or a Community gathered together for Gods worship and service. Thus we see the Church of the Jews had this power among them; and for the Christian Church, the practice of Discipline upon offenders was never questioned, though the right hath been; so that from hence we gather, in that it hath been the practice of Societies constituted for the Worship of God, to call offenders to an account for their offences, and if upon examination they be found guilty, to exclude them their Society; that it is a dictate of the Law of Nature, That every offender against the Laws of a Society must give an account of his actions to the Rulers of it, and submit to the Censures inflicted on him by them. Thus I am now come to the end of my first stage, to shew how far Church-Government is founded upon the Law and Light of Nature,
And so to the end of the first Part.